01973796
06-11-1999
Marie J. Vellis, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Marie J. Vellis v. Department of the Treasury
01973796
June 11, 1999
Marie J. Vellis, )
Appellant, )
) Appeal No. 01973796
v. ) Agency No. TD-964023
) Hearing No. 370-96-X2545
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
(Internal Revenue Service), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision ("FAD")
concerning her equal employment opportunity ("EEO") complaint of unlawful
employment discrimination on the bases of sex (female), age (57), and
physical disability (heart attack), in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.; and the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791, et seq. Appellant alleges she was discriminated against when she
was not selected for one of five GS-1169-12 Revenue Officer positions.
This appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that appellant, a GS-11 Revenue Officer at the agency's
Central California District Office in San Jose, California, filed a
formal EEO complaint with the agency on October 21, 1995, alleging that
the agency had discriminated against her as referenced above. At the
conclusion of the investigation, appellant requested a hearing before
an Equal Employment Opportunity Commission ("EEOC") Administrative Judge
("AJ"). Following a hearing, the AJ issued a Recommended Decision ("RD")
finding no discrimination.
The AJ concluded that appellant established prima facie cases of sex
and age discrimination because she was qualified for the positions
and not selected in favor of individuals not in her protected classes.
As for her disability discrimination claim, the AJ held that appellant
presented no evidence substantiating that she was a qualified individual
with a disability. The AJ then concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions, namely, that the
interviewing panel and the Selecting Official rated appellant's interview
as very poor and determined that she was not suitable for promotion.
Finally, the AJ found that appellant failed to present sufficient
credible evidence establishing that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
The agency's FAD adopted the AJ's RD.
On appeal, appellant contends that the AJ erred by not allowing her to
introduce evidence concerning alleged discrimination by her supervisor,<1>
and in not weighing other evidence properly. The agency requests that
we affirm its FAD.
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's RD
sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. We agree with the AJ and find that
appellant failed to present sufficient credible evidence demonstrating
that her sex, age or alleged disability was considered in the selection
process. Therefore, the Commission discerns no basis upon which
to overturn the AJ's finding of no discrimination in this matter.
In this regard, the AJ made specific credibility findings which are
entitled to deference due to the AJ's first-hand knowledge, through
personal observation, of the demeanor and conduct of the witnesses.
See Esquer v. United States Postal Serv., EEOC Request No. 05960096
(September 6, 1996); Willis v. Department of the Treasury, EEOC Request
No. 05900589 (July 26, 1990). Accordingly, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
decision which adopted the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. � 1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court
appoint an attorney to represent you and that the Court permit you
to file the action without payment of fees, costs, or other security.
See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��
791, 794(c). The grant or denial of the request is within the sole
discretion of the Court. Filing a request for an attorney does not
extend your time in which to file a civil action. Both the request
and the civil action must be filed within the time limits as stated in
the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
June 11, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 28, 1995, the agency sent appellant a letter describing the
issue to be investigate and allowing appellant an opportunity to dispute
the framed issue. The record does not indicate that appellant disputed
the issue as framed by the agency. Since the issue pertaining to
discrimination by appellant's supervisor was not before the AJ, the
Commission finds no error in excluding any evidence relating to this issue.